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8. Another statement of Mr. Kshitij Sharma was recorded on 14th January, 2016 wherein he stated that the goods covered under the Bill of Entry No. 3866704 was the first consignment imported by M/s Balaji Overseas. That the order for supply of food supplements was placed telephonically, on Mr. Mukul @ Mike, who was working with Sea Efforts Ltd., China. Further, he approached the CHA- M/s Him Logistics Pvt. Ltd., New Delhi and submitted KYC and other documents like invoice, etc., for customs clearance. He further stated 9 | C/51161, 52268 & 52269/2018-DB that he was aware that for import of food supplements, the same requires NOC from FSSAI before clearance. Mr. Sharma was shown by the officers, the print out of similar food supplements available on various internet sites wherein the retail prices of the respective items offered in India was mentioned. Based on such data, he was shown a calculation chart of the value and duty of the food supplements imported by him, as listed in the tables herein above. That the value and duty was calculated on the basis of the data from the internet and the duty on these items was worked out at Rs. 1,51,62,942/-. Mr. Kshitij signed on calculation sheet, as having seen the same. He further stated that although he had given the documents for clearance to M/s Him Logistics Pvt. Ltd., he did not know how the Bill of entry was filed on his behalf by another CHA-KVS Cargo, New Delhi. Mr. Sharma was further shown a chart showing details of previous import of food supplements during the year 2013 & 2014 by M/s Kshitij International.

11. It appeared to Revenue that the value of the undeclared imported goods found concealed with the declared goods, under Section 14 is not available, as there is no declared transaction value. Hence in terms of Section 14 (2), value shall be determined as per the Customs Valuation (Determination of Price of Import Goods) Rules, 2007, hereinafter called 'the Valuation Rules'. It appeared to Revenue that under Rule 3 of the Valuation Rules transaction value of identical goods or similar goods can be adopted. As the data for value of identical/similar food supplements is available in Customs NIDB of Directorate General of Valuation, the same will be considered. Further in terms of Notification Number 49/2008-CE(NT) issued under Section 4A of the Central Excise Act, food supplements are classifiable under tariff item 21069099, are subject to assessment on the basis of 'retail sales price' (RSP) for purpose of levy of 'Additional customs duty. This Notification prescribes for an abatement of 35 per cent from the RSP for determination of the value for levy of CVD. The value of food supplements as available on the internet, where the country of origin was US, imported at various ports in India, was taken and accordingly 12 | C/51161, 52268 & 52269/2018-DB the food supplements not containing beef, as per table herein above was valued at Rs. 2,29,03,044/- and the duty payable was determined at Rs. 1,28,73,481/-, as follows:

retailer M/s Amazon, for similar food supplements, and after allowing 13 | C/51161, 52268 & 52269/2018-DB deduction towards transport cost, insurance cost, customs duty, reasonable profits margins, etc. Taking the MRP (per unit price) from the internet, valuation was done, giving rebate of 35% on MRP, working the assessable value as follows- Assessable Value of Food Supplements Containing In Rupees Beef Total S.No. Description Quantity Total Assessable MRP MRP Value 1 Muscle Meds 156 206856 79143 Ultra 1326 Concentrated Carnivore Beef Aminos 100% Beef Protein (300 tablets) 2 Muscle Meds 1000 3558000 1361291 Bioengineered 3558 Beef Protein Isolate Carnivor (Net Wt 4 lbs/1.808 kgs) 3 Muscle Meds 1044 1384344 529650 Ultra 1326 Concentrated Carnivore Beef Aminos 100% pure Beef Protein (300 tablets) 4 Muscle Meds 400 400 160000 61216 Mass Anabolic Beef Protein Gainer (Net Wt 10.19 lbs/ 4.625 kgs) Total 5309200 2031300 14 | C/51161, 52268 & 52269/2018-DB The A4 size paper was valued on pro-rata basis, at the declared value. The total value of goods was thus Rs. 2,55,12,823/- as follows;- Value of Consignment imported in container No. GESU 4740611 & MANU 5758717 S No. Details Value in Rs 1 Food Supplements not containing Beef 2,29,02,860 2 Food Supplements containing Beef 20,31,300 Proteins 3 A4 Plain Copy Paper 5,78,663 4 Total 2,55,12,823

14. The show cause notice was adjudicated contest and the proposals confirmed. The food supplements not containing beef and the A4 paper 15 | C/51161, 52268 & 52269/2018-DB was held liable for confiscation under Section 111 (l) and (m). Further, the food supplement containing beef were held to be liable for absolute confiscation under Section 111(n) of the Customs act. As the food supplements and paper were released provisionally observed that as the goods are not produced for confiscation, under Section 125, these goods are not available for confiscation. though they are liable for confiscation. The bank guarantee furnished was ordered to be appropriated towards redemption fine that could have been imposed on these goods upon confiscation. The duty determined recoverable from the appellants, M/s Balaji Oversees and further appropriation of the amount already paid for Rs.6,60,790/- was ordered. A penalty of Rs.10 crore was imposed on the appellant, M/s Balaji Oversees under Section 112 and 114 AA of the Act and similarly penalty of Rs.5 crore was imposed on Mr Kshitiz Sharma. Further, penalty of Rs.12,50,000 was imposed on M/s. Him Logistics under Section 112 of the Customs Act.